Joseph Raz's Legal Philosophy
I. Introduction
Joseph Raz emerged in the 1970’s as one of the most influential
contemporary writers in the philosophy of law. His work in analytical
legal theory continues a rich tradition running from Thomas Hobbes to
Jeremy Bentham, John Austin, Hans Kelsen, and H.L.A. Hart. While Raz’s
views certainly embody a theory of law, he does nothing so simple as
saying ‘law is.’ Rather, he provides inter-dependent analyses of central
characteristics of law, usefully approached through his analysis of
legal norms – the building blocks of legal system – as special kinds of
practical reasons for action. This central view is explained in section
II, followed by explanation of his other distinctive contributions to
legal philosophy. These include an account of the authoritative nature
of law (section III), a rejection of the legal positivist ‘separation
thesis’ which nonetheless preserves the positivist insight about the
moral fallibility of law (section IV), an account of legal system and
related problems of identity and continuity (section V), and engagement
with the methodology of legal theory (section VI).
II. Legal Norms as Second-Order Reasons
In early work Raz argues that legal philosophy is best understood as
one branch of the philosophy of practical reason, philosophy engaged in
the analysis of reasons for action.(Raz, 1979) Raz distinguishes
first-order from second-order reasons for action, calling first-order
reasons those which apply to subjects in the absence of consideration of
any social institutions or norms. These include, e.g., reasons of
prudence, health or well-being, and some reasons of morality.
Second-order reasons are reasons about reasons, and are
characteristically found where there are social institutions and norms.
Raz characterizes legal norms as general kinds of
institutionally-accepted second-order reasons, devoting the most
attention to mandatory norms, first called ‘exclusionary’ and later
‘preemptive’ reasons not to act on first-order reasons. A familiar
non-legal example will illustrate this view. I have a first-order (or
‘operative’ or ‘dependent’) reason of financial well-being to make sound
investment decisions, but I am not always in the best physical or
emotional or rational state to make such decisions. I might then accept
and practice a second-order reason (i.e., a norm) that I should not make
any investment decisions when I am tired, no matter how good or bad an
investment option might look. My second-order reason not to make
investment decisions when tired here functions to exclude or preempt
appeal to the first-order reasons (i.e., the merits of an investment
option and its potential effect on my financial well-being).
Law makes use of second-order reasons in a special way. Where
norm subjects’ choices in some situation are ordinarily made by relying
on some one or more first-order reasons for conduct bearing on that
situation, laws govern that situation by functioning as second-order
reasons for conduct which exclude or preempt reliance on otherwise
relevant first-order reasons. For example, we all have first-order
reasons of safety to coordinate our conduct according to traffic rules.
But once a rule has been made, or perhaps crystallized from
long-standing practice, we no longer need to (nor should in situations
where we are ignorant of the rules) appeal to first-order reasons of
safety to determine, e.g, on which side of the road to drive. The legal
rule, e.g., drive on the right, serves as a second-order or exclusionary
reason on which we are to act, and so excludes or preempts appeal to
first-order reasons.
III. Law’s Authority
Raz’s account of the authoritative nature of law is intertwined with
his account of legal norms. Law’s authority is what gives legal norms
their legal quality distinguishing them from other second-order norms.
Raz’s account of law’s authority is perhaps his most distinctive
contribution to legal philosophy, attracting distinguished advocates,
and equally distinguished critics.
The theory holds that where law exists, it necessarily claims
authority to regulate comprehensively, supremely and openly the lives of
its subjects. (Raz, 1979, 116-120) Law claims to be comprehensive in
that all aspects of social life are regulated, whether by prohibition,
requirement, or permission. Law claims to be supreme in that a legal
system claims to sit at the top of a hierarchy of all normative systems
and norms within a particular society. Finally, law claims to be open,
offering support or authorization to various forms of voluntary
associations and private agreements.
Several aspects of this summary statement deserve further
explanation. First, since laws only exist in legal systems,
investigation of the nature of law is at the same time an investigation
of legal systems and their authority. Raz notes that since there is
nothing logically distinctive about legal norms as second-order reasons
which marks them apart from other, non-legal second-order reasons, what
makes them legal norms is their membership in a legal system. The
membership is identified by observation of their systematic application
by norm-applying institutions. (Raz, 1979, ch. 6)
A second aspect is the special significance Raz’s account
attaches to law’s self-image. Not only do legal systems provide legal
norms to guide the conduct of their subjects, they also claim a kind of
legitimate authority over them. The exclusionary or preemptive reasons
law provides claim to be justified reasons, since they are meant to
reflect a settled and accurate view of the first-order reasons which
apply to subjects. This aspect of Raz’s view is supported by
intricately detailed argument, summarized in three distinct theses about
laws as practical reasons: the dependence thesis, the preemption
thesis, and the normal justification thesis. (Raz, 1995, 214) The
dependence thesis maintains that “[a]ll authoritative directives should
be based, among other factors, on reasons which apply to the subjects of
those directives and which bear on the circumstances covered by the
directives.” (Raz, 1995, 214). In other words, law could not claim
authority unless it claimed to be based, at least in part, on these
‘dependent’ reasons, which include moral reasons. The preemption thesis
holds that law functions to reflect and replace first-order dependent
reasons, through provision of second-order, preemptive reasons in the
form of legal norms. In other words, to claim authority is to claim to
make a practical difference in the practical deliberation of subjects by
preempting appeal to first-order reasons. The normal justification
thesis states that the law claims that subjects are normally justified
in following law’s directives since to follow these will more likely
lead subjects to act on the right balance of first-order dependent
reasons than if subjects tried to act on appeal to first-order dependent
reasons themselves.
The dependence, preemption, and normal justification theses which
constitute Raz’s theory of law’s authority represent a sophisticated
contribution in political philosophy to understanding the relation
between subjects and states, and they display Raz’s answer to the
anarchist’s challenge that authority and reason are incompatible. By
explaining the nature of law’s authority in terms of its role in
practical reason, Raz can hold that there is nothing irrational or
compromising to one’s autonomy in following rules or living under the
authority of a state. Yet in the philosophy of law the three theses also
go a long way towards resolution of at least one of the longstanding
disputes between natural law theorists, who insist that law must be
understood in terms of its moral purpose, and legal positivists such as
Hart, who deny any such necessary connection between law and morality.
On the one hand, Raz’s theory of law’s authority shows that law must be
understood in terms of its moral purpose: in conceiving of law one must
understand that necessarily law claims moral authority to settle for
subjects how they ought to conduct themselves. (Raz, 2003, 14) But, on
the other hand, by emphasizing the special significance of law’s claim
for itself to be a moral authority, rather than emphasizing the truth or
falsity of such a claim in any or all circumstances, Raz’s theory
preserves the positivist insistence that particular laws and legal
systems everywhere are morally fallible.
Raz does not, therefore, share Hart’s view of the separation
thesis which holds that “… it is in no sense a necessary truth that laws
reproduce or satisfy certain demands of morality, though in fact they
have often done so.” (Hart, 1994, 185-6) The difference is easy to miss
but important. Hart thought that in conceiving of law one need not
suppose that it must reproduce or satisfy demands of morality: when law
does reproduce or satisfy demands of morality, it is a matter of
contingent, historical fact and nothing more. On Raz’s view, in
conceiving of law one must understand that law claims to be morally
authoritative, so law must be understood to claim to reproduce or
satisfy demands of morality. This is of course different from the
general, external view that it is morally desirable that law reproduce
or satisfy demands of morality. Rather, the connection is internal: when
law does reproduce or satisfy demands of morality, we are not
restricted to the conclusion that this is simply a matter of contingent,
historical fact. We are also entitled to the observation or conclusion
that this is part of law’s nature, and that its claim in a particular
instance happens to be justified. Likewise, when law does not reproduce
or satisfy demands of morality, we are able to draw the additional
conclusion that law’s claim, while sincere or genuine, is unjustified.
(Raz, 2003; see also Green, 2008)
IV. The Sources Thesis
While law’s authority is best understood in terms of a moral claim to
best reflect and replace direct appeal to moral and other first-order
reasons, Raz emphasizes that legal theorists must not suppose that legal
directives of states claiming authority are morally legitimate simply
in virtue of being claimed to be so. Raz’s ‘Sources Thesis’ highlights
the positivist insistence that the existence of particular laws and
legal systems is everywhere and always a matter of social practices and
never a matter of satisfaction of moral principles or values. (Raz,
1979, 47-52) ‘Exclusive positivism’, as Raz’s view has been called,
maintains that moral considerations are never among the existence or
validity conditions of law. (Giudice, 2002, 2003, 2008)
Here we have a second difference between Raz’s and Hart’s view of
law. Hart supposed, but defended only briefly, the possibility that
some legal systems might include or incorporate moral criteria among the
ultimate tests of legal validity for the membership of legal norms.
(Hart, 1994, 250) This view has come to be known as ‘inclusive
positivism’ or ‘incorporationism’, of which there are several variants.
(Waluchow, 1994; Coleman, 2001; Kramer, 2004) Raz rejects inclusive
positivism, arguing most forcefully that the possibility of moral
criteria or considerations counting among the ultimate tests of legal
validity is incompatible with the claim of authority necessarily made by
all legal systems. The ‘argument from authority’ is as follows (Raz,
1979, ch. 3; 1995, ch. 10). To claim authority, a legal directive must
at least be capable of claiming authority. To be capable of claiming
authority a legal directive must purport to make a practical difference
by excluding or preempting appeal to dependent reasons, which include
first-order moral reasons. Inclusive positivism, by maintaining that
determination of the existence or validity of law might sometimes
require moral consideration or argument, imagines a situation which
cannot exist, since to appeal to moral considerations in the
determination of legal validity renders law incapable of making a
practical difference, and so renders it incapable of claiming authority
to settle for subjects what they ought to do according to law.
V. The Identity and Continuity of Legal Systems
Raz’s work on the nature of law’s authority continues to develop and
attract critical attention. But his work in the philosophy of law
extends far beyond his influential contribution to the theory of law’s
authority. His work on the nature of legal system offers interesting
insights and illumination on unresolved problems of identity and
continuity. Raz famously does not share the view that the identity of
legal systems – the unified set of member norms – can be solved by
appeal to a single basic norm or rule of recognition. In his view, there
could be multiple basic norms or rules of recognition in a single legal
system. Part of the solution to the problem of identity requires
observation that legal systems claim to be comprehensive, supreme, and
open, a view which supposes that legal norms amount to a system when
they are all operated by the same norm-applying institutions. (Raz,
1979, chs. 5,6)
This account, however, is judged even by Raz’s defenders to be
underdeveloped, facing several problems. In particular, it is far from
clear that all state legal systems can be accurately understood to be
making supreme, comprehensive, and open claims to authority.(Marmor,
2001, 39-42) The idea of legal systems as supreme, comprehensive, and
open normative systems also leaves intact the problem of the continuity
of legal systems: what explains the persistence of a legal system and
what distinguishes changes within a legal system which do not alter its
identity or existence from changes to a legal system which do alter its
identity or existence? Raz only offers a theory of momentary legal
systems, a snapshot in time holding a legal system’s identity and
existence stable for the purpose of analysis, and suggests that others,
including Hart, have either overlooked the problem of continuity or
simply found it unfashionable to solve. (Raz, 2001, 11) As new forms of
legal order emerge, in the form, for example, of the European Union,
questions of the identity, existence, and continuity of legal systems
must be taken up again, and Raz’s work may be a particularly helpful
point of departure. (See Dickson, 2008)
VI. Methodology and Conceptual Analysis
Raz’s work on the theory of law’s authority and the nature of legal
systems is systematic and profound. His remarks on the methodology of
legal theory are less systematic, but no less insightful. His view about
the goals and success conditions of analytical legal theory in
particular, and social philosophy in general, is perhaps best stated in a
passage on authority in The Morality of Freedom. He writes
Accounts of ‘authority’ attempt a double task. They are part
of an attempt to make explicit elements of our common traditions: a
highly prized activity in a culture which values self-awareness. At the
same time such accounts take a position in the traditional debate about
the precise connections between that and other concepts. They are
partisan accounts furthering the cause of certain strands in the common
tradition, by developing and producing new or newly recast arguments in
their favour.(Raz, 1986, 63)
A central aim of philosophy of law is to offer explanations of
the general concepts of law (and the concept of law itself) which are
responsive to both citizens’ and theorists’ interests in a way which
illuminates their self-understanding. As he writes elsewhere, the
theorist’s goal is to “advance our understanding of society by helping
us understand how people understand themselves.” (Raz, 1995, 237)
This is a nuanced view, and one far removed from any belief that
philosophers of law are in the business of elucidating the meaning or
definition of particular words. Raz’s view is nonetheless vague in one
respect: what counts as or what are, exactly, the philosophical
interests of citizens and theorists? But here the vagueness is
deliberate, and a decisive strength. As Raz notes in identifying the
unsolved problems of identity and continuity, the interests of citizens
and theorists shift, such that some problems might fall in or out of
fashion. About explanations of the concept of law in general, he writes
that there are no uniquely correct explanations, but only better or
worse explanations depending on the concerns addressed (Raz, 2001, 10).
It might be, for example, that in some era and social situation
explanation of the nature of authority best responded to questions about
the nature of law, as citizens and theorists alike were concerned to
understand the nature of their relation to the state. In another era and
social situation explanation of the nature of governance might be more
responsive to concerns about the nature of law, as citizens and
theorists seek to understand new forms of private regulation and their
relation to public forms of law in a globalizing world. Similarly, in
one era attention to the nature of state legal systems might have been
prominent, but this may also be changing as new forms of non-state legal
orders seem to be emerging. By highlighting the philosophy of law’s
responsiveness to contingent practices and shifting interests, Raz’s
views serve well to characterize its never-ending tasks.
Yet, responsiveness to contingent practices and shifting
interests might suggest that Raz’s view is incapable of offering what a
theory of law should: an explanation of law’s universal and essential
properties.(Raz, 2005, 324, 328) But here appearances of having
abandoned legal theory’s goal are deceiving, and show a further way in
which Raz’s view of the methodology of legal theory is nuanced. The fact
that explanations of the concept of law are explanations in service of
particular inquirers’ interests does not preclude holding at the same
time that law has universal or essential properties. In more recent work
Raz argues that beginning with an explanation of our concept of law, a
concept developed largely in the Western world of sovereign states, need
not inevitably result in a rigidly parochial concept of law. While our
concept of law is a stable part of a common and shared understanding, it
is still a “philosophical creation”, designed to aid understanding of
particular social phenomena by mediating between words or phrases and
aspects of the world. (Raz, 2005, 324-325) As a “philosophical
creation”, which is more than a reflection of linguistic usage, that
creation is influenced by new experience, and as Raz notes, our concept
of law has in fact been changing to make it “more inclusive and less
parochial”. (Raz, 2005, 332) In this way, concepts of law are not in
competition with but instead responsive to shifting interests as, e.g,
our interest in understanding law may be expanding from its familiar
context of a singular sovereign state to comparison between dissimilar
types of states to transnational, international, and global contexts.
Understanding this complex view nonetheless requires observing a
distinction Raz draws between the nature of law and the concept of law
(a distinction Raz argues that earlier theorists, including Hart,
overlooked). (Raz, 2005, 332) The nature of law is to be a metaphysical
object having universal and essential properties, while the concept of
law is a parochial, typically prevailing understanding of law’s nature.
It is important to note that by this distinction Raz does not aim to
argue that law really does have universal and essential properties –
only that those committed to supposing that there is such a thing as the
nature of law are committed to viewing law as having universal and
essential properties. Whether there is or is not a ‘nature’ of law
cannot be assessed from evaluation of ‘our’ or ‘your’ concept of law,
since explanations of concepts of law are explanations of a particular
perspective of law’s nature, not explanations of the universal and
essential properties themselves. In other words, no conclusion either
way – whether law does or does not have universal or essential
properties – can be drawn from observation that concepts of law differ
and are subject to change. There is also, then, on Raz's view, nothing
objectionable in applying our concept of law to other cultures which do
not share our concept of law, or do not themselves have a concept of law
at all. What matters is whether other cultures have social institutions
which have the nature of law: legal institutions which are subject to
conceptual explanation. An explanation of a concept of law is a thus
kind of descriptive-explanatory tool used by inquirers with interests
and perspectives to explain the world to themselves and others as they
see it.
There is one final observation which is important to note and
rounds out Raz’s view of the methodology of legal theory. The closer a
concept of law comes to covering or designating successfully all
instances of law, and so transcending its particular origin, the closer
explanation of that concept of law comes to explanation of the nature of
law. As Raz writes,
Is it not our aim to study the nature of law, rather than our
culture and its concept of law? Yes and no. We aim to improve our
understanding of the nature of law. The law is a type of social
institution, the type which is picked up – designated – by the concept
of law. Hence in improving our understanding of the nature of law we
assume an understanding of the concept of law, and improve it.” (Raz,
2005, 331)
So while the life of a concept of law might have a parochial
beginning, through its responsiveness to shifting practices and
broadening interests and perspectives, it may, eventually, come to
resemble the kind of philosophical concept of law a general
jurisprudence or truly general legal theory seeks to accompany in
explanation of the nature of law.
VII. Conclusion
Raz’s work in the philosophy of law ranges broadly, from an account
of the nature of individual legal norms to a theory of legal system to
an account of the very aims and methods of legal theory. This short
introduction has been just that, a short introduction to some of his
leading ideas, attempting to show the marked differences between his
views and those of previous theorists in the analytical legal theory
tradition, views which have already influenced a generation of later
legal philosophers. Perhaps most importantly, Raz’s views show in equal
measure distinctive contributions to philosophical theorizing of law and
motivation for pursuing old questions from new directions.
Key Words
Authority, concept of law, dependence thesis, exclusive positivism,
inclusive positivism, legal norm, legal system, methodology, nature of
law, normal justification thesis, preemption thesis, reason for action,
separation thesis, sources thesis.
Related Entries
Selected Bibliography
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Eventually
after a number of visits she produced a series of drawings based on two
separate themes. The one used the tree as a symbol. Historically,
justice in Africa took place in the open air under a tree. It was
transparent and participatory. The other theme was the dignity of the
human person.